Update on HHS Conscience Comments

October 29, 2008

As I mentioned earlier in the week, if you go to the Regulations.gov website and look for public comments submitted regarding the “physician conscience” proposed rule, it appears that there are only 5,315 comments, which doesn’t come close to estimates from organizations who solicited comments. It appears that in some cases, organizations who solicited comments sent through them as one big batch in a single document. As such, those comments won’t show up in the count individually, but one of those 5,315 comments may actually represent >1,000 people commenting using a pre-drafted web form message. Here’s one example, of “1351 comments from Planned Parenthood supporters as a PDF.” If you can’t find your own comment on the site, this may be why.

Source: Health Care Daily Report: All Issues > 2008 > October > 10/29/2008 > News > Health Workforce: ‘Right of Conscience’ Rule Issued Improperly Because EEOC Not Consulted, Waxman Says
Rep. Henry Waxman (D-Calif.) Oct. 27 said a Health and Human Services Department proposed rule—the provider right of conscience regulation—was issued in apparent violation of a policy that requires interagency coordination and review.
The proposed rule, published in the Aug. 26 Federal Register (73 Fed. Reg. 50274), would bar discrimination or retaliation against health care workers who refuse to participate in abortion-related services.
Waxman, chairman of the House Oversight and Government Reform Committee, said in a letter to HHS that when issuing the proposed rule the agency failed to “avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other Federal agencies” as required by a 1993 executive order.
Under the order, the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs (OIRA) are responsible for facilitating interagency coordination when regulatory actions are planned.
Failure to Consult.
Waxman said in his letter that it appears HHS and OMB did not consult the Equal Employment Opportunity Commission (EEOC) about the proposed rule even though there is an overlap between the scope of the rule and EEOC’s religious discrimination work.
“If there had been consultation with the EEOC as required by the executive order, the proposal submitted for public comment might have been significantly different—or might not have been issued at all,” Waxman said. He also said that after the proposal was released, the EEOC submitted comments for the record that essentially opposed the rule (197 HCDR, 10/10/08).
The letter requested that HHS provide by Oct. 31, 2008, documentation of any consultation that did occur or describe steps that HHS and OMB will take to respond to EEOC’s concerns before final rulemaking.
HHS also has been urged to abandon the rule by those, including Waxman, who are concerned it would threaten access to reproductive and other health services (186 HCDR, 9/25/08).
An HHS spokesman Oct. 28 said the agency has received the letter and is reviewing it.
More information is available at http://oversight.house.gov/story.asp?ID=2264.